|Giedo van der Garde|
Perhaps, the revelation of preseason Formula 1 testing has been the Sauber F1 Team. After a disastrous 2014, in which the Hinwil, Switzerland based squad scored zero championship points, new drivers Marcus Ericsson and Felipe Nasr have shown encouraging pace ahead of next weekend's season opening Australian Grand Prix.
Of course, it's never exactly easy in the cutthroat world of Grand Prix racing. And for Sauber, before their drivers, or shall we say if their drivers, take to the track in Albert Park, they first have to visit a Melbourne court room to address their unresolved dispute with driver Giedo van der Garde.
You surely remember van der Garde. The 29-year-old Dutch served as a reserve driver for Sauber in 2014, making 7 appearances in Friday practice. Previously, van der Garde raced for Caterham in 2013 earning a best finish of 14th at Hungary.
You might also remember last November when Ericsson and Nasr were announced as the team's 2015 race drivers, van der Garde expressed a certain degree of surprise, on the grounds that he too, had a 2015 race contract with the team. Ironically, or perhaps not, 2014 Sauber driver Adrian Sutil made a similar claim at the time to being under contract with the team for 2015.
Now, regarding Sutil news broke Friday that the German is also pursuing legal action against Sauber. However, for reasons too involved to explain here Sutil's case should not be confused with that of van der Garde. And for the purposes of this piece, AutoRacing1 will focus specifically on van der Garde's dispute with Sauber. Why the matter remains unresolved less than a week before opening practice in Melbourne, what the relevant legal issues are, how the different jurisdictions complicating the matter are or are not interrelated, and what exactly is at stake for all parties involved going forward, are but a few of the matters pertaining to this bizarre saga, AR1 will address.
Allow me to start by saying Sauber/van der Garde matter is a mess. Furthermore, just as the matter has lingered without resolution all offseason, the potential for the matter to linger beyond Australia exists as well. While it's difficult to imagine the matter carrying on much longer without resolution, indications are van der Garde holds some leverage, and isn't planning on going away quietly. Should the Dutchman prevail or even just manage to perpetuate the dispute, the outcome could drastically alter the composition of the 2015 grid, and be disastrous for Sauber.
Anyway, to begin, let us go back to last November when van der Garde was informed he would not be racing for Sauber in 2015, after apparently agreeing to a contract with the team in June of 2014.
Publicly at least, Sauber has not contested the claim van der Garde had, or has, a contract with the team for 2015. This and the fact van der Garde is known to have rather sufficient funding makes his dismissal for Sauber in favor of Nasr and Ericsson, something of a mystery. Further with the pending legal dispute, the contractual details, always difficult to find under normal circumstances, have not been made clear.
However, F1 journalist Joe Saward reported Thursday that van der Garde's contract with Sauber for 2015 was tied to Jules Bianchi, who was also, again according to Saward, slated to race for the squad. Bianchi, of course, was severely injured at Suzuka, and remains in a coma. According to Saward, Bianchi's accident forced Sauber to redo "the entire arrangement," which had Bianchi and van der Garde paired as Sauber's 2015 lineup. Reports also suggest that the cash-strapped Sauber team was assisted by an up-front windfall of cash from Ericsson and/or Nasr.
Interestingly, if Saward is correct, Bianchi's connection to the team means we can add a fifth driver to the 4 (Ericsson, Nasr, Sutil, and van der Garde) to have already claimed a 2015 race contract with team. Granted, Bianchi is obviously unable to fulfill whatever deal he might have signed, and the signings of Nasr and Ericsson came after Bianchi's accident changed "the entire arrangement." Still, the revelation that Bianchi was slated for a seat means, Sauber might have a propensity for overbooking their driver lineup.
Believing he had a contract assuring a race seat, van der Garde sought legal recourse during the offseason in Switzerland, and obtained a favorable ruling from the Arbitration Institution of Switzerland:
"The respondent [Sauber] was ordered to refrain from taking any action the effect of which would be to deprive Mr. van der Garde of his entitlement to participate in the 2015 Formula One Season as one of Sauber's two nominated race drivers," was part of the tribunal's ruling. In short, van der Garde has a contractual right to a race seat with Sauber.
Still, that didn't seem to mean much to Sauber. When the entry list was released for Australia, Ericsson and Nasr were listed as the two race drivers with Raffaelle Marciello the test/reserve driver. No van der Garde.
So if a court ruled van der Garde was entitled to participate in the F1 season, why is he not racing in Australia?
Well, for one, Switzerland cannot enforce Swiss law in Australia. Also, because F1 doesn't race in Switzerland, there is actually no jurisdiction where the ruling as it pertains to van der Garde having a race seat can be enforced.
So, what does the Switzerland ruling mean?
Bear with me, this is complicated.
AR1 reached out to a Washington D.C. law firm that deals with cases of international arbitration, and were told with "it is standard for individuals in contractual disputes to seek enforcement (emphasis mine) of rulings from local authorities."
In other words, the Swiss ruling gives van der Garde the ability to pursue recourse in other jurisdictions, one example being, Australia.
See, van der Garde is not asking the Australian court to rule on the validity of his contract. Van der Garde is looking for the Australian court to enforce the ruling from the Swiss court. Now, will they?
It's impossible to know without having the specifics of the ruling and local law. However, similar to how nations cooperate when in say extraditing fugitives from another nation, there is cooperation amongst nations in the enforcement of legal rulings. The key here is to what degree the Australia court determines the Swiss ruling has relevance in Melbourne. For example, the Australia court may determine that they are legally obligated to enforce the ruling in Switzerland due to precedent and/or local law. If that determination is made, this saga gets really interesting.
Ok, but isn't van der Garde cutting it close four days before opening practice?
Depends on how you look at it.
Yes, the possibility of the Australian court not being able to adequately hear all the evidence in time for van der Garde to race, could be an issue as it pertains to van der Garde specifically running in Melbourne. But oddly, the eleventh hour timing could also work in van der Garde's favor. Let me explain.
According to The Guardian, the Victoria Supreme Court in which the case will be heard, has the "power to enforce injunctions against individuals or teams participating in the local event, pending later rulings."
What that means is that even if there is no proof that the contract should be enforced locally, but merely reasonable concern that the Swiss ruling needs need further consideration, an injunction could be issued preventing the team or certain drivers from racing. Yes, if there is debate regarding the matter an injunction could be issued banning the team from participating pending further deliberation.
So, by that logic, it sounds like van der Garde could just be trying to stick it to Sauber?
Conceivably, van der Garde is attempting to put pressure on Sauber to reach some sort of settlement with the team. But we'll get to that more, below. The bigger point is that the Swiss ruling has given van der Garde a lot of leverage. Think about this.
Even if he were to lose his case in Australia, what's to stop van der Garde from seeking legal recourse two weeks from now in Malaysia, then in China, then in Bahrain, etc.? By pursuing the Swiss ruling, van der Garde has already theoretically cast doubt on each race for Sauber. And if the Dutchman were to receive a favorable ruling in Australia, he would theoretically have greater leverage in other nations F1 races.
Also, van der Garde has leverage considering Ericsson and Nasr presumably have legitimate contracts with the team. If van der Garde is successful in getting a court to rule in his favor, Sauber has to drop an under contract driver. Certainly, that driver would challenge the team in the courts, and presumably have a more-than-reasonable case.
This scenario makes us realize van der Garde holds more cards than many probably think. Because if van der Garde wins, not only is that an issue for Sauber, it has a domino effect that likely keeps Sauber going to court.
Still, the most important factor, and perhaps most unpredictable, is van der Garde himself.
While van der Garde may believe he has been done wrong, a more-than-fair question is what exactly does he hopes to gain from all this?
For example, let's say van der Garde succeeds in court Monday and the determination is Sauber must run van der Garde next weekend or face legal action. What happens?
Well, for one, a contract will be upheld in which van der Garde has to pay
Sauber. Yes, keep in mind, van der Garde was known to be bringing financial backing to the team. Essentially, van der Garde is pursuing legal recourse for the right to pay the team, not the other way around. And perhaps just as odd, the team doesn't want his money.
Complicating matters (yes, even more) is that van der Garde has been widely rumored as a possibility at Manor Marussia, where he would likely be bringing funds to the table. If van der Garde has joined Manor Marussia and is just playing cat-and-mouse with Sauber to gain a proverbial pound of flesh, could the tactic backfire with the Dutchman going from zero seats to two? Would Manor Marussia then have a claim against the Dutchman? And how long will van der Garde continue pursuing Sauber if Manor Marussia is offering an opportunity?
Another reasonable question is would van der Garde even want to drive for Sauber? Yes, there are only 20 coveted F1 seats. But considering what has transpired it would be an awkward arrangement to say the least. And while he may want vindication, this is not a matter where van der Garde's name has been tainted, simply one in which he got seemingly, screwed. At what point would reason prevail and van der Garde want to seek a better situation for his racing career? Surely, he doesn't want to spend what should be the prime years of his driving career in court. Or does he?
Logically, one would think van der Garde will call off the dogs at some point, reach a settlement of some kind, and move on. One would also think Sauber has probably been counting on that scenario to some degree. Or if not a settlement, the Dutchman would, in the best interests of his career, throw in the towel and take his millions elsewhere.
Possibly. But we know for certain that hasn't happened yet, nor has there been any sign such a measure is imminent. And Monday morning, Sauber will find itself in a court room half a world away squaring off with a determined Dutchman, who appears to know the leverage he has, and hasn't shown the slightest inclination to acquiesce.
Further, considering a ruling in favor of van der Garde means the Dutchman would be paying Sauber, the notion that van der Garde just wants money or a settlement, is somewhat put to bed. Rather, the Dutchman seems to be out for something maybe not so tangible as simply money or a place on the F1 grid.
We can't know for sure how far van der Garde is willing to take the matter. The better question perhaps, is whether Sauber has the resolve to find out. Because if they do, things are likely to get a lot worse before they begin to get better. Brian Carroccio is a columnist for AutoRacing1. He can be contacted at BrianC@AutoRacing1.com.